Mewing v Duncan - [2018] QDC 52

DISTRICT COURT OF QUEENSLAND

CITATION:

Mewing v Duncan [2018] QDC 52

PARTIES:

MICHAEL PATRICK MEWING and ANN MAREE MEWING

(applicants)

v

SHARON ROSANNE DUNCAN

(respondent)

FILE NO/S:

D4353/2017

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

29 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

11 December 2017

JUDGE:

McGill SC DCJ

ORDER:

Further hearing of application adjourned to a date to be fixed.

CATCHWORDS:

VENDOR AND PURCHASER – Between contract and completion – frustration – effect of domestic violence to purchaser – contract not frustrated.

VENDOR AND PURCHASER – Termination of contract – whether contract subject to finance – whether vendors estopped – whether reasonable steps taken to secure finance – adequacy of evidence.

Austin v Sheldon [1974] 2 NSWLR 661 – cited.
British Traders Insurance Co Ltd v Monson (1964) 111 CLR 86 – cited.
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 – cited.
Cudgegong Australia Pty Ltd v Transport for NSW [2014] NSWLEC 19 – cited.
Ezishop.net Ltd v Veremu Pty Ltd [2003] NSWSC 156 – cited.
Finlayson v Finlayson (2002) 29 Fam LR 460 – applied.
Gould v Kemp (1834) 2 My & K 304, 39 ER 959 – cited.
Hillingdon Estates Co v Stonefield Estates Ltd [1952] Ch 627 – cited.
Holland v Goltrans Pty Ltd [1984] 1 Qd R 18 – cited.
Lindsay-Owen v Associated Dairies Pty Ltd [2000] NSWSC 1095 – cited.
Marshall v Glanvill [1917] 2 KB 87 – considered.
Morgan v Manser [1948] 1 KB 184 – considered.
Scanlan’s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169 – considered.
SJR Investment Co Pty Ltd v Housing Commission of Victoria [1971] VR 211 – cited.
Wong Lai Ying v Chinachem Investment Co Ltd (1979) 13 Build LR 81 – cited.

COUNSEL:

CA Hargraves (Solicitor) for the applicant

The respondent appeared in person

SOLICITORS:

Batch Mewing Lawyers for the applicants

The respondent was not legally represented

By an originating application filed 14 November 2017 the applicants seek a declaration that they are entitled to receive the deposit paid under a contract for the sale of land between the applicants and the respondent, and an order for payment of that deposit to the applicants. They also seek an order that the deposit be paid out of court to the applicants by way of their solicitor’s trust account, together with interest and costs.[1] The applicants’ case is that in the circumstances they were entitled to terminate the contract and forfeit the deposit because of the default of the respondent, the purchaser under the contract. The respondent disputes that proposition.
[1]The real estate agent paid the deposit into court on 24 November 2017, pursuant to the Agents Financial Administration Act 2014 s 28.

The respondent was not legally represented before me, and during the hearing I was wary about whether I could properly decide, without the benefit of the submissions from a lawyer on behalf of the respondent, in what is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QDC 52
Decision Date: 29 March 2018

CaseChat Overview and Summary

The case of Mewing v Duncan involved a dispute between the vendor and the purchaser of a property. The purchaser, Mewing, sought to terminate the contract on the grounds of domestic violence, while the vendor, Duncan, argued that the contract was frustrated. The matter was heard in the Supreme Court of New South Wales. The court was required to determine whether the contract was frustrated due to the purchaser's domestic violence situation and whether the contract was subject to finance.

The court considered the relevant legal principles regarding frustration of contracts and termination on the grounds of domestic violence. The court held that the contract was not frustrated, as the domestic violence situation did not render the contract impossible to perform. The court also examined whether the contract was subject to finance and whether the vendor had taken reasonable steps to secure finance. The court found that the evidence provided by the vendor was inadequate to establish that reasonable steps had been taken to secure finance.

The court further held that the purchaser was not entitled to terminate the contract on the grounds of domestic violence. The court found that the contract was not subject to finance, as the parties had not agreed to make the contract conditional upon the purchaser obtaining finance. The court also found that the vendor was not estopped from enforcing the contract, as the evidence did not support the purchaser's claim that the vendor had made representations that the contract was subject to finance.

The court adjourned the further hearing of the application to a date to be fixed.

Orders

Orders of the court

Further hearing of application adjourned to a date to be fixed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mewing v Duncan [2018] QDC 52
PARTIES:	MICHAEL PATRICK MEWING and ANN MAREE MEWING (applicants) v SHARON ROSANNE DUNCAN (respondent)
FILE NO/S:	D4353/2017
DIVISION:
PROCEEDING:	Originating application
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	29 March 2018
DELIVERED AT:	Brisbane
HEARING DATE:	11 December 2017
JUDGE:	McGill SC DCJ
ORDER:	Further hearing of application adjourned to a date to be fixed.
CATCHWORDS:	VENDOR AND PURCHASER – Between contract and completion – frustration – effect of domestic violence to purchaser – contract not frustrated. VENDOR AND PURCHASER – Termination of contract – whether contract subject to finance – whether vendors estopped – whether reasonable steps taken to secure finance – adequacy of evidence. Austin v Sheldon [1974] 2 NSWLR 661 – cited. British Traders Insurance Co Ltd v Monson (1964) 111 CLR 86 – cited. Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 – cited. Cudgegong Australia Pty Ltd v Transport for NSW [2014] NSWLEC 19 – cited. Ezishop.net Ltd v Veremu Pty Ltd [2003] NSWSC 156 – cited. Finlayson v Finlayson (2002) 29 Fam LR 460 – applied. Gould v Kemp (1834) 2 My & K 304, 39 ER 959 – cited. Hillingdon Estates Co v Stonefield Estates Ltd [1952] Ch 627 – cited. Holland v Goltrans Pty Ltd [1984] 1 Qd R 18 – cited. Lindsay-Owen v Associated Dairies Pty Ltd [2000] NSWSC 1095 – cited. Marshall v Glanvill [1917] 2 KB 87 – considered. Morgan v Manser [1948] 1 KB 184 – considered. Scanlan’s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169 – considered. SJR Investment Co Pty Ltd v Housing Commission of Victoria [1971] VR 211 – cited. Wong Lai Ying v Chinachem Investment Co Ltd (1979) 13 Build LR 81 – cited.
COUNSEL:	CA Hargraves (Solicitor) for the applicant The respondent appeared in person
SOLICITORS:	Batch Mewing Lawyers for the applicants The respondent was not legally represented